The Dangers of America’s Expanding ‘Digital Prison’

On any day of the year, more than 200,000 Americans are wearing electronic ankle monitors that allow courts, police or corrections authorities to track their movements as a condition of their release from prison.

Many observers consider these digital devices a “win-win”: they allow the formerly incarcerated (and sometimes those awaiting trial) to escape confinement while reducing prison and jail populations; and they protect public safety by lowering the chances of future criminal behavior.

However, a new study in the Cardozo Law Review argues that in fact they are a form of “digital prison” that not only makes it harder for formerly incarcerated individuals to successfully reintegrate into civil society; they may even increase the odds that they will end up back behind bars.

The growing use of GPS electronic surveillance, or “e-carceration,” threatens to produce a “subgroup of surveilees who are increasingly divorced from the civic life of their community, divorced from opportunity for social mobilization, and divorced from political and educational life and opportunities,” writes Chaz Arnett, an assistant professor at the University of Pittsburgh School of Law.

Arnett added that the most damaging impact of digital monitoring is felt by those whose “social marginalization” has already landed them inside the criminal justice system, such as unemployed or traumatized African-American men—thereby perpetuating the disproportionate effects of the system on the poor and people of color.

“An e-carceration regime only acts to further one of the greatest harms of mass incarceration, the entrenchment of race and class subordination, and abandons genuine attempts at rehabilitation and reintegration,” he wrote.

According to Arnett, “there is already anecdotal evidence that populations disproportionately subjected to electronic surveillance are overwhelmingly black, brown and poor.”

GPS monitoring, which can be imposed for a lifetime on individuals such as sex offenders, effectively thwarts anyone from developing the confidence and mobility that can help secure employment—which most experts consider the principal passport to successful reentry.

“A person’s connection to their community, through employment, family ties, religious practices and social activities, is one of the strongest protectors against criminal justice contact, (but) the use of electronic monitoring acts to strain and sever those crucial ties,” Arnett wrote.

“The sad irony of electronic monitoring is that it divorces individuals from the very things they need for success,”

In a more ominous note, Arnett cited statistics showing that private firms are beginning to invest heavily in digital surveillance technology—specifically many of the companies who were once the leading developers of private prisons—creating a vested financial interest in subjecting more individuals to monitoring, whether it promotes public safety or not.

Individuals can be charged anywhere from $10 to $40 a day for using the ankle bracelets—after paying hefty initial fees—offering the possibility of a new bonanza to firms who are leaving  the privatized prison industry because of growing opposition from state governments.

GEO Group, one of the largest for-profit prison operators, has invested more than $450 million in electronic monitoring and alcohol monitoring-related businesses between 2011-2015, according to figures cited by Arnett.

It Started with Spiderman

Electronic monitoring as a form of judicial control was first introduced by a New Mexico judge in the 1980s after he was inspired by an episode in a comic book, in which a villain attached a tracking device to Spiderman to control him from afar. Since that somewhat bizarre beginning, ankle devices are now deployed in all 50 states.

Between 2005-2015, the number in use around the country rose by 140 percent, and the devices are now used now in the juvenile justice system as well as adult community supervision—and by federal immigration authorities.

Ironically, many supporters of justice reform have welcomed their use as a way of reducing prison populations, citing some studies that show they have cut recidivism.

Arnett, noting that other studies suggest the technology has no effect on recidivism, suggested advocates who believe that are deluding themselves.

Electronic surveillance technology, he argued, is an extension of the strategy of “punitive control” that governs the U.S. justice system, and represents a further step away from the rehabilitative goals espoused by reformers.

“With relatively little regulation, and almost no public awareness of the harms they may cause, electronic surveillance systems envelop the formerly incarcerated in an invisible network of control that is potentially even more insidious than the current probation and parole system,“ Arnett wrote.

Worse, the systems are also subject to glitches and mismanagement that in effect leave individuals wearing the bracelets “set up to fail,” he added.

Ankle Monitor in a Morgue

He offered some poignant examples. An Illinois man who developed cancer shortly after he was released from prison under electronic monitoring kept missing his appointments with the doctor because his family could not get timely permission to leave home. He died in hospital with the ankle monitor attached to his leg, and his corpse sat in the morgue awaiting cremation for weeks before a corrections supervisor came to remove the device from his body.

In another case, a Wisconsin man named Cody McCormick who was placed on electronic monitoring kept experiencing poor satellite reception at his home, which apparently led authorities to believe he had turned the system off. When police came to his home and found him exactly where he was supposed to be, he was still placed under arrest and jailed for three days.

Nearly a year later, McCormick was arrested again when the ankle bracelet located him erroneously at a location where he was forbidden to be, even though he had only driven past it.

While Arnett stops short of explicitly calling for a phase-out of the ankle bracelets, he argues that the apparent lack of interest so far in regulating their use—along with court rulings rejecting claims that they were a violation of Constitutional guarantees of privacy—should make authorities focus on alternatives such as community-based treatment and supervision.

“If part of righting the wrongs of mass incarceration…involves seriously committing to decarceration efforts, then strategies to enable decarceration must be shrewdly examined and critiqued to ensure that we are not repeating the same mistakes,” he wrote.

“A guiding question that must remain at the forefront of our minds is whether the rise of an e-carceration regime presents a solution to, or an expansion of, the harm of mass incarceration.”

The full study can be downloaded here.

This summary was prepared by Stephen Handelman, editor of The Crime Report.

via The Crime Report

March 2, 2020 at 08:42AM

Irish Citizen Gets Prison For Trafficking Rhino Cup From Miami

MIAMI, FL — A second Irish citizen pleaded guilty Tuesday to his role in trafficking a drink cup fashioned out of an endangered rhinoceros horn from Miami International Airport to the United Kingdom by way of Atlanta.

Richard Sheridan, 50, was sentenced by U.S. District Judge Jose E. Martinez to 14 months in a federal prison followed by two years of supervised release.

Michael Hegarty, 40, previously pleaded guilty and was sentenced to 1-1/2 years in prison followed by three years of supervised release.

“For our critically endangered wildlife, every case that serves to deter their illegal poaching and trafficking in their artifacts is important to the global effort to preserve these iconic specimens for our children and the generations to come,” U.S. Attorney Ariana Fajardo Orshan said in Miami.

Federal prosecutors said Sheridan and Hegarty traveled from London to Miami where they were joined by a Miami resident to attend an auction in Rockingham, North Carolina back in 2012.

via “Miami arrested” – Google News

October 2, 2019 at 04:56PM

After Legal Pot, Are We Ready to Decriminalize Psychedelics?

Now that marijuana has been legally accepted for medical use in much of the U.S., it may be worth considering the decriminalization of psychedelic substances for similar reasons, according to a paper in the Lewis & Clark Law Review.

“Psychedelics are now being shown [as] viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals,” wrote Dustin Marlan, assistant law professor at the University of Massachusetts School of Law.

Marlan recommends posing a referendum question at the state level in the same way as state voters were asked to consider decriminalizing medical marijuana.

Decriminalizing psychedelics could represent a “potential major shift in the War on Drugs,” he added in his paper, entitled “Beyond Cannabis: Psychedelic Decriminalization and Social Justice.”

In May, 2019, Denver became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”), and Marlan predicted that other cities and states would follow suit with referenda.

Marlan cited several studies purporting to show the medical value of psychedelics. One study, according to Marlan, concluded that, “[s]ingle moderate-dose psilocybin, in conjunction with psychotherapy produced rapid, robust, and sustained clinical benefits in terms of reduction of anxiety and depression in patients with life-threatening cancer. . . . leading to immediate antidepressant and anxiolytic effects with enduring clinical benefits.”

An additional study, Psychedelic Medicine for Mental Illness and Substance Use Disorders, produced by Mason Marks, an affiliated fellow at Yale Law School, argued physicians should rethink their biases against psychedelics, and separate fact from fiction.

According to Marks, “Legal measures [such as state law decriminalization] that would encourage the medical use of psychedelics are justified, based on the relative ineffectiveness of traditional psychiatric drugs in treating mental illness.”


Lophophora Williamsii (peyote) by Armen Tsirunyan via Flickr

Moreover, experiences generated by psychedelics are also “found to enhance the well-being of individuals without health problems,” Marlan argued.

“Focusing only on medical exemptions to prohibition could obscure the fact that healthy individuals can also benefit from the use of psychedelics, and that a legal right to do so could exist.”

However, Marlan wrote, “It is worth clarifying that, due to the psychological dangers involved, use of psychedelics outside of the therapeutic context should not necessarily be endorsed or encouraged by law or society.”

Marlan laid out several possible strategies for the decriminalization of psychedelics:

      • Work within existing regulatory guidelines to get FDA approval;
      • Remove some psychedelics from Schedule I of the Controlled Substances Act so that research becomes less expensive and burdensome;
      • Establish state-governed systems for regulating psychedelics.

Marlan then concluded that policymakers must consider the medical value of these mind-altering drugs, as well as its implications for religious freedom and social justice.

The full research paper can be accessed here.

Andrea Cipriano is a staff writer at The Crime Report.

via The Crime Report

October 2, 2019 at 09:22AM

Miami Police officer accused of crossing the line during DUI arrest

(WSVN) – A Miami Police detective sworn to enforce the law is caught on tape trying to be above the law. Just one station has the dramatic police bodycam videos showing what happened after the detective was pulled over for a suspected DUI. 7’s Kevin Ozebek investigates.

An off-duty City of Miami Police detective in handcuffs, and hoping to catch a break from the law.

Miami Police Detective Danny Hebra: “Sarge, please.”

MCSO deputy: “This is not fun for me, either.”

Danny Hebra: “I know. It’s [expletive] up.”

Monroe County Sheriff’s deputies arrested Miami Police Detective Danny Hebra in July on DUI charges.

MCSO deputy: “You know we have a job to do, right?” (takes Hebra’s badge from belt holder)

Danny Hebra: “No, no. Sarge, sarge.”

MCSO deputy: “Come on, just relax.”

It all began with a 911 call.

Yancy Bartlett (in 911 call): “There’s this guy in a black Tahoe. He’s, like, really drunk, driving over the curbs and everything.”

Yancy Bartlett made that call after he says he saw Hebra park his car in a Key Largo shopping plaza.

Yancy Bartlett: “I was watching him walk there, and he was just like wobbling everywhere, so I figured that he was probably drinking. As he went into the liquor store, I called 911 and told them what was going on.”

Bartlett says Detective Hebra then left the store and sat in his car.

Yancy Bartlett: “He took a bottle, I guess, of vodka and threw the bottle out the window, right onto the ground, and then drove off.”

Moments later, a Monroe County Sheriff’s deputy spotted the Tahoe and followed, watching as Hebra drifted into the bike lane.

After he turned onto a side street into the wrong lane, he pulled him over.

MCSO deputy: “Would you happen to have your registration with you at all?”

Danny Hebra: “Ehh.” (holds his chest)

Hebra seemed to have trouble speaking and told the deputy that he was nervous.

Danny Hebra: “I usually don’t get stopped, so, whew.”

Instead of handing over his registration. he gave his City of Miami Police ID.

Danny Hebra: “Being a police officer, that’s my registration.”

A second deputy arrived and gets filled in on what’s happening.

MCSO deputy: “He does have a firearm on him. When I made contact with him, his eyes are bloodshot. I could smell alcohol coming from the car, and speech is slurred.”

Danny Hebra was ordered to leave his gun in the car and then reluctantly agreed to a roadside sobriety test.

Danny Hebra: “You want to do this?”

MCSO deputy: “I can tell you, from police officer to police officer, Danny, this does not make me feel very comfortable.”

He did start the test, but soon wanted to make a phone call. The police report notes the contact he called was labeled “Sergeant.” In the call, Hebra said he’s “doing roadsides” and asked, “Do I do them?”

Once off the phone, he told the deputy he no longer wanted to continue the test, but he did continue begging to be let off the hook.

Danny Hebra: “There’s nothing you can do? Really?”

MCSO deputy: “I can’t.”

Danny Hebra: “Really? Really?”

MCSO deputy: “Really. If I let you go right now, Danny, you understand I’ll lose my job?”

Danny Hebra: “You won’t.”

MCSO deputy: “One hundred percent.”

The deputies cuffed Hebra and led him into a cruiser. They collected his wallet, police badge and his loaded gun.

MCSO deputy: “Jesus Christ.”

On the way to the police station, Hebra appeared to pass out. Later at the Sheriff’s Office, he refused to take a breathalyzer test and again tried to berate a deputy.

Danny Hebra: “How do you [expletive] arrest an officer? How do you do that?”

MCSO deputy: “We’re not above the law, sir. You know that, right?”

7News sifted through Detective Hebra’s personnel file. In his 12-year career at Miami Police, he has never been given one reprimand.

Danny Hebra: “Sarge, Sarge. Never been stopped before.”

Danny Hebra: “Sarge, I’m going to lose my [expletive] job. Lose it.”

Detective Hebra still has a job, but has been told to stay home while Miami Police conduct an internal investigation.


Copyright 2019 Sunbeam Television Corp. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

via “Miami arrested” – Google News

September 30, 2019 at 12:16AM

Why Defendants Rarely Testify

Conventional wisdom has it that when a person is blamed for something he didn’t do, he should protest loudly and often, “I didn’t do it!”

However, it’s rare for a person accused of a crime to testify at his own trial. First, he doesn’t have to.  If all he’s going to say is, it wasn’t me, the presumption of innocence says that already and carries none of the risks of testifying.

If there’s more to add, like self-defense, mistake, alibi or, I did it, but please give me a break, that’s a different story. He’ll have no choice but to take the stand. However, there are so many risks to testifying that every attorney worth his salt thinks long and hard about recommending it.  No matter what the prosecutor’s evidence, if a defendant testifies, that is what will determine the verdict.

What problems come up when a defendant testifies?

It shifts the burden of proof.  The burden is always only on the prosecutor, but when there’s two versions of the same event, jurors compare the prosecutor’s story with the defendant’s. Whether the prosecution made its case or not, if they don’t like how the defendant came off, either because they don’t believe him or just don’t like him, they’ll generally convict.

Without the defendant testifying, a good defense attorney can always find some weakness in the prosecutor’s case to point out, particularly when it comes to cops — for example what could have been done but wasn’t, or what was done wrong.

Since most people arrested are poor and didn’t graduate college (or even high school), many have a tough time articulating their story.  No matter how much prep a lawyer does, if a client has memory problems, cognitive or mental-health issues, or just lacks experience speaking to a group, that person will have a tough time explaining himself and dealing with cross-examination.  He may have said one thing to police at one time and changed it another.  It might be tough for him to explain why he waived Miranda rights and confessed if he didn’t commit the crime.  False confessions are often made by vulnerable people — adolescents, the intellectually challenged, or drug users coming off a high and promised by police that confessing will get them back on the street.  Getting these same people to coherently explain why they confessed is next to impossible.

Then there’s the issue of prior criminal history.  When a person testifies, his prior bad acts and crimes are fair game.  Generally, courts don’t permit the defendant’s entire rap sheet into evidence, but parts of it will come in. (It depends on the judge.) The prosecution always wants it all, while defense counsel argues for none.  The court then weighs the prejudice of revealing the defendant’s record versus its probative value.  When any criminal history is revealed, it’s tough for jurors to still presume the defendant innocent.

This all said, many lawyers recommend that when a defendant can testify, he should.  In those rare cases where the accused is articulate, has no horrible criminal past, and has a good story to tell, his testimony can win an otherwise loser case.

Take the ongoing Texas trial of former Dallas police office Amber Guyger for murdering a black man in his apartment because she mistakenly entered it thinking it was hers.

I heard part of her testimony and thought she did well.  She showed remorse, cried on the stand, told her story coherently, spoke of her hardworking background, and clinched it when she said, “I wish he was the one with the gun who killed me.”  The prosecutor barely touched her.

Guyger is the rare defendant who’s educated, has a good job, is able to tell her version cleanly, has no criminal history, and has a good story to tell.  My prediction: She’ll be acquitted or at worst found guilty of manslaughter and not murder.

It will be interesting to see what happens with Harvey Weinstein, charged with multiple counts of sexual assault and now set to start trial in January 2020.  He fits the description of a defendant who should take the stand — smart, well-educated, articulate, no criminal record.

But my guess is his lawyers won’t put him on.  His is not a “what happened” story, often the best time for defendants to testify, but a “whether it happened” or “whether the women consented” story.

In most cases like this, with the multitude of witnesses against him, attorneys would prefer the jurors to fixate only on the credibility of the complainants. They want to draw as little attention as possible to the guy sitting at defense table. That’s already tough to do with such a media-popping case.

But keeping Weinstein off the stand will make it only about the women.  Plus, the story he wants to tell may not be very good.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

via Above the Law

September 30, 2019 at 12:50PM

Men hack electronic billboard, play porn on it

Police are trying to find two men who broke into the control room of an electronic billboard in the Detroit suburb of Auburn Hills. The men caused a pornographic video to play on both sides of the billboard, which is located next to Interstate 75, around 11pm on Saturday evening. Videos of the billboard quickly began to circulate on social media (link is mildly NSFW).

“Two suspects entered a small building, which houses a computer that runs the content for the digital billboard, located underneath the sign,” Auburn Hills police reported in a Facebook page. Police shared surveillance footage showing the two men with their faces obscured by glasses and by hoodies pulled tight around their heads.

“The suspects forced entry into the building, which is also secured by a 6 foot fence,” the police reported. “The suspects were inside the building for approximately 15 minutes before leaving.”

“It was dark out, so the screen was glowing really bright,” police officer Ryan Gagnon told the Detroit Free Press.

Police contacted the company that owns the sign, which shut the offensive video off within about 20 minutes.

Police say that promoting pornography—especially to any minors who might have been on the freeway at the time—carries a penalty of of up to $500 and 90 days in jail. They also face possible felony burglary charges, since they had to break into the control room in order to play the video.

via Ars Technica

October 1, 2019 at 11:05AM

Jurors convict ex-cop who shot man after entering wrong apartment; ‘castle doctrine’ is at issue

Jurors convicted a former Dallas police officer of murder Tuesday for shooting and killing a black man after she mistook his apartment for hers.

Jurors convicted Amber Guyger even though they were allowed to consider whether the “castle doctrine” protected her, the Washington Post and NBC News reports.

Guyger was accused of shooting and killing 26-year-old Botham Jean, whose apartment was directly above hers, after opening his unlocked door in September 2018 and seeing him seated on his couch. Jean was unarmed and eating ice cream. Guyger said she feared for her life after opening the door and seeing a “silhouette figure” in the dark apartment.

Judge Tammy Kemp ruled Monday that jurors could consider whether Guyger was protected by the castle doctrine, according to prior reports by the Washington Post, the Texas Tribune, the Dallas Morning News and CNN.

According to the Dallas Morning News, the castle doctrine holds that people have the right to use deadly force, without retreating, to protect themselves or their home (their “castle”) when they know or have reason to think such force is immediately necessary. They also have the right to be present at the location where the deadly force is used, provided that they didn’t provoke the other person, and they weren’t engaged in criminal activity.

Another section of the law cited by the Texas Tribune says people’s use of force is presumed to be reasonable when they know or have reason to think the other person is unlawfully on their property.

Prosecutors have said Guyger was distracted on the night that she entered Jean’s apartment because of sexually explicit text messages from her partner on the police force. She had just finished a shift of nearly 14 hours when she parked on the wrong floor of her apartment building and went to the wrong apartment.

Prosecutor told jurors in closing arguments that the Castle doctrine didn’t apply to Guyger.

Lead prosecutor Jason Hermus argued that Guyger’s use of force wasn’t reasonably necessary. Another prosecutor, Jason Fine, also argued that the doctrine doesn’t apply.

“Who does castle doctrine protect? Homeowners. It protects homeowners against intruders, and now, all of a sudden, the intruder is trying to use it against the homeowner. What are we doing?” Fine said.

Fine said Guyger missed several cues that she was in the wrong apartment, including Jean’s red doormat, the carpet in his home and the apartment number on the door.

Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, told the Texas Tribune that the castle doctrine is an ambiguous term, and lawyers disagree about the doctrine’s protections.

Many people were surprised when the judge allowed use of the doctrine, legal analyst Pete Schulte told the Washington Post. Schulte was among them.

“This case is so rare. You couldn’t even make this up for a law school exam,” Schulte said.

via ABA Journal Daily News

October 1, 2019 at 01:25PM

Google Play apps laden with ad malware were downloaded by millions of users

Malicious apps discovered by Symantec Threat Intelligence popped up full screen ads, and hid the app title even in the App Switcher view—making it difficult for users to know where they were coming from.

This week, Symantec Threat Intelligence’s May Ying Tee and Martin Zhang revealed that they had reported a group of 25 malicious Android applications available through the Google Play Store to Google. In total, the applications—which all share a similar code structure used to evade detection during security screening—had been downloaded more than 2.1 million times from the store.

The apps, which would conceal themselves on the home screen some time after installation and begin displaying on-screen advertisements even when the applications were closed, have been pulled from the store. But other applications using the same method to evade Google’s security screening of applications may remain.

Published under 22 different developer accounts, all of the apps had all been uploaded within the last five months. The similarity in coding across the apps, however, suggests that the developers “may be part of the same organizational group, or at the very least are using the same source code base,” May and Zhang wrote.

Most of the applications claimed to be either photo utilities or fashion-related. In one case, the app was a duplicate of another, legitimate “photo blur” application published under the same developer account name—with the legitimate version having been featured as in the “top trending apps” category of Google Play’s Top Apps charts. “We believe that the developer deliberately creates a malicious copy of the trending app in the hope that users will download the malicious version,” May and Zhang concluded.

Phoning home

At first, after installation, the malicious apps appear normally on the Android home screen. But when launched, they retrieve a remote configuration file that includes the malicious code. Keywords associated with the malicious activity, including the code to hide the app’s icon, are encrypted in the configuration file, “which we believe is an effort on the malware authors’ part to avoid rule-based detection by antivirus scanners,” explained May and Zhang.

Once the configuration file is downloaded, the app extracts the settings and changes its behavior accordingly. The app then hides its icon on the home screen, and then starts displaying full-screen ads, even when the app is closed. “Full-screen advertisements are displayed at random intervals with no app title registered in the advertisement window, so users have no way of knowing which app is responsible for the behavior,” the Symantec researchers noted.

Obviously, these malicious apps are intended to simply generate advertising revenue for their developers. “Thanks to the apps’ ability to conceal their presence on the home screen, users can easily forget they downloaded them,” the researchers noted. And without a way to link the ads to a specific app, the developers have a captive audience and are free to keep pushing ads at their user-victims without concern about their apps being uninstalled.

via Ars Technica

September 26, 2019 at 10:43AM

Spotlight: Prosecuting Lifesavers Exposes Deep Problems With Laws and Their Enforcement

Four women leave water and food in a place where desperately hungry and thirsty people are likely to find them. The hope is to save lives.

Others come along and, sneering, pour out the water. One, laughing, calls it “trash.” Another kicks the jugs, violently. A video capturing these acts on several occasions between 2010 and 2017 is difficult to watch, because the people seem to take so much joy in depriving dying people of water.

These episodes might easily represent the best and worst of humanity, but, according to the federal government, the first violates the law and the second upholds it.

“During the summer of 2017, when temperatures reached triple digits in Arizona, four women drove to a vast desert wilderness along the southwestern border with Mexico” bringing water jugs and canned food, according to Kristine Phillips of the Washington Post. Thousands of people have died while making that trek in Arizona in recent years. Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick, volunteers with the humanitarian group No More Deaths, were later charged with federal misdemeanors. Prosecutors argued that they violated federal law by entering a protected refuge area without a permit and by leaving water and food there. The judge convicted them. “In his verdict, U.S. Magistrate Judge Bernardo Velasco said the women’s actions violated ‘the national decision to maintain the Refuge in its pristine nature.’ Velasco also said the women committed the crimes under the false belief that they would not be prosecuted and instead would simply be banned or fined.” (They were sentenced to probation and were fined.)

“Aid workers say their humanitarian efforts, motivated by a deep sense of right and wrong, have been criminalized during the Trump administration’s crackdown on illegal border crossings. Federal officials say they were simply enforcing the law,” Phillips adds. Catherine Gaffney, another No More Deaths volunteer, said the guilty verdict challenges all “people of conscience throughout the country.” She asked, “If giving water to someone dying of thirst is illegal, what humanity is left in the law of this country?” Federal prosecutors argued, successfully, that the women should have been aware that leaving disposable items at the refuge is a punishable crime, and they admitted to violating federal law.

In Marfa, Texas, a four-time elected prosecutor, Teresa Todd, is under investigation for human smuggling after stopping to help three migrants alongside the road at night in February. “I see a young man in a white shirt. He runs out toward the road where I am,” Todd told NPR. He was pleading for help. “I can’t just leave this guy on the side of the road. I have to go see if I can help.” The young man told Todd that his sister, 18-year-old Esmeralda, was in trouble. “I mean, she can hardly walk, she’s very dazed.” The migrants sheltered in Todd’s car while she sought legal advice from a friend who is the legal counsel for the local U.S. Border Patrol. Before the friend could reply, a sheriff’s deputy showed up. An agent was soon reading Todd her Miranda rights. When Esmeralda reached the hospital, doctors told hershe was on the brink of death. The sheriff of Presidio County defended the action against Todd, saying that anyone with undocumented migrants in their car risks arrest.

Now, another No More Deaths volunteer, college geography instructor Scott Warren, faces three felony charges and up to 20 years in prison, for conspiring to transport and for harboring two Central American men. The men had approached Warren, telling him that they had walked through the desert for two days with almost nothing to eat or drink. Warren shared his dinner with them, and called for medical help.

Many have noted, in response, that these laws are unjust, and that this is as good an occasion for jury nullification as ever existed. But in an op-ed in the Washington Post, Warren takes the discussion further. “Over the years, humanitarian groups and local residents navigated a coexistence with the Border Patrol. … At times, the Border Patrol sought to cultivate a closer relationship. ‘Glad you’re out here today,’ I remember an agent telling me once. ‘People really need water.’” Warren continues: “Those kinds of encounters are rare these days. Government authorities have cracked down on humanitarian aid [and are] aggressively prosecuting volunteers.”

Warren is pointing out that unjust laws are only half the problem. Unjust laws on the books are nothing new. For them to do the most harm, they must be enforced as such. Warren notes that smuggling and harboring laws “have always been applied selectively: with aggressive prosecutions of ‘criminal’ networks but leniency for big agriculture and other politically powerful industries that employ scores of undocumented laborers.”

In these cases, actors appear to have set out to enforce them in an unjust way. The U.S. Attorney’s Office did not have to bring charges, but it seems to have jumped at the chance. Former Attorney General Jeff Sessions ordered border prosecutors to prioritize harboring cases, after which such prosecutions shot up. UN Human Rights experts have urged the government to drop the charges.

Border Patrol did not need to cooperate, but it did. The head of the Border Patrol’s powerful union has publicly denounced the practice of leaving water for migrants in the desert. And Judge Velasco, who convicted the four women for leaving supplies in the desert, also presided over Warren’s case before felony charges were filed. He was found to have had private discussions about the case with prosecutors, without defense present, a serious violation.

Velasco did not need to convict the women. His hands were not tied. In the mid-2000s, he presided over the case of two college-age No More Deaths volunteers, who faced felony harboring charges for driving three sick migrants to a church for medical care. “In the run-up to the trial, Velasco batted away one pretrial defense motion after another. But once Collins, the district judge, took over, the case was dismissed,” reports Ryan Devereaux for The Intercept. “Efforts to prosecute No More Deaths volunteers for leaving water on federal lands similarly ran aground in the 9th Circuit.”

When laws are unjust, and prosecutors bring unjust cases, and judges make unjust decisions, juries are often the last line of defense. In Warren’s case, it seems, at least some jurors might be taking that job seriously. The jury is deadlocked.

via The Appeal

June 11, 2019 at 02:06PM

What happens after federal courts run out of money to continue operations?

By Debra Cassens Weiss


Federal courts are using fees and other funding sources to continue most operations through about Jan. 11. What happens when the money runs out?

Courts will continue operating, but not at full steam, report Bloomberg News, the New York Times and CBS News.

Nonessential court workers will likely be sent home, while others will be working if it’s necessary “to support the exercise of Article III judicial powers,” according to a provision of the federal Antideficiency Act.

That means judges and key staff members will have to work without pay to handle criminal cases and other matters that are deemed essential.

Also working will be essential probation and pretrial services officers who are needed to resolve cases, according to a Dec. 10 congressional report.

Most federal prosecutors and staff members for criminal cases also are continuing to work, as are Department of Justice lawyers working on civil cases that haven’t been delayed. Jurors will be empaneled, but they won’t be paid right away.

Meanwhile, federal prison guards are on the job, working without pay, the Washington Post reports.

Already many proceedings in immigration courts have been delayed, although immigration courts in detention centers continue to operate.

The partial shutdown began on Dec. 22 after President Donald Trump refused to sign a budget bill that did not include $5 billion in border wall funding. If the shutdown extends beyond Jan. 11, it will set a record.

Individual courts and judges will decide how to proceed, courts spokesperson David Sellers told Bloomberg. The courts will have to coordinate with the U.S. Marshals Service to deliver defendants to court and U.S. Attorney’s offices to make sure prosecutors are available.

Chief U.S. District Judge Ruben Castillo of the Northern District of Illinois told Bloomberg that his court will operate on “triage” if the shutdown continues after Jan. 11. “This is not the way to run a court system,” he said.

Already federal courts “have issued a hodgepodge of conflicting orders” on suspensions of civil cases involving the federal government, according to the New York Times. Some courts have issued blanket orders for such suspensions. Individual judges have issued differing decisions.

A federal judge in San Francisco has refused to delay a Monday trial that seeks to block a citizenship question on the 2020 census. But DOJ lawyers won a delay in a suit claiming Trump’s hotel in Washington, D.C., improperly profits from business with foreign countries.

via ABA Journal Daily News

January 7, 2019 at 12:53PM